Monthly Archives: August 2012

The Missouri Supreme Court got it right, in Watts vs. Cox (No. SC91867) that caps can’t be imposed by statutory law (Chapter 538.210 RSMO) on non-economic damages related to medical malpractice, but turned to the wrong Section of Missouri’s Bill of Rights to justify its opinion. In doing so it created a wrong that we might have to live with until the court reverses itself or the people amend their Constitution. The use of “Right to Trial by Jury”, via the establishment of precedent by this opinion, may permit future damage claims that could otherwise be properly modified or limited by the general assembly, assuming their willingness to do so, without a Constitutional amendment. More on that point later.

The right to a trial by jury applies only when the courts are accessed as a result of either a criminal or civil act or transgression. You don’t go to court merely for the sake of exercising your right to a trial by jury as you might go to the printing press to exercise your right of free speech – you go to court when triggered by an event in which you are wronged or do wrong. Article I, Section 22, used by the court to overrule the legislative cap on non-economic damages in medical cases, taken alone, provides no claim or allowance for damages, capped or uncapped. It takes this ‘trigger’ of an act or action to initiate the rights held under Article I, Section 22, Right of Trial by Jury.

Therefore the Supreme Court should have looked at what the Constitution says about the types of ‘triggers’ that are provided citizens of Missouri to initiate a court trial. Since the subject opinion is civil we need only look at what the Constitution says about that in Article 1:

“Section 14. Open courts—certain remedies—justice without sale, denial or delay.—That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.”

The key word in Article I, Section 14 is “every injury”. Therefore, if non-economic injury resulting from medical malpractice was one of the types of injury to a person that was recognized, under common law, by the courts at the time the Constitution was adopted, and it was; then non-economic damages caused by medical malpractice should be allowed now. And, unless the wording of Article I, Section 14 clearly allows the legislature to reduce, cap or otherwise modify the findings of a jury under the “Right of Trial by Jury”, and it doesn’t; then the statute is in opposition to the will of the people, as set out in the Missouri Constitution, and the Supreme Court properly overturned the law, albeit for the wrong reason.

So what future wrong may result from this right decision for the wrong reason? An answer is found by considering punitive damages, otherwise known as “jackpot justice”. Punitive Damage awards are based on the action, attitude, or intention of the defendant and extracted from defendants as punishment and not for “injury” or direct damages to a citizen, found to be harmed. Nowhere in the Missouri Constitution can I find a right to the receipt of punitive damages by a citizen wronged. The payment of punitive damages to plaintiffs, which are usually liberally shared with trial lawyers, is akin to requiring speeders to remit traffic fines to those in attendance at traffic court.

This practice should end. The amount of punitive damages should be vested in police power by statute and assessed as deemed appropriate by the legislature and, when assessed, be required to be paid to the state and not to defendants and their lawyers.

It would be wrong for the Missouri General Assembly to assume, as a result of the Supreme Court decision in Watts vs. Cox, that punitive damages may not be further modified and they should get busy and do more to end “Jackpot Justice” in our state.

I’ll leave the discussion of a Constitutional Amendment, to fix what many believe is wrong with non-economic damage awards in Missouri, for another essay.